Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 to 6992k, as amended.
Complainant, U. S. Environmental Protection Agency, filed a Motion for Partial Accelerated
Decision pursuant to the Consolidated Rules of Practice Governing the Administrative
Assessment of Civil Penalties and the Revocation or Suspension of Permits, 40 C.F.R. Part
22.20(a). Held: Complainant's Motion for Partial Accelerated Decision is Denied as
Complainant has failed to demonstrate that no genuine issues of material fact exist, and that
Complainant is entitled to judgement as a matter of law.

Three inspections were conducted on Respondent's premises prior to the issuance of the
Complaint in this proceeding. A Tax Credit Inspection of the facility was conducted by EPA on
or about March 25, 1993; a Visual Site Inspection was conducted by EPA on or about November
17, 1993, and the Oregon Department of Environmental Quality conducted an inspection on
April 24, 1996. During each of these inspections, Complainant alleges that Respondent's tram
carts were observed off the drip pad and wood-treating chemicals from the tram carts were
observed on the ground around the tram carts.

On October 23, 1997, EPA filed an initial Complaint charging Respondent with violating
RCRA on three counts as follows: Count one, failure to minimize tracking of hazardous waste
off the drip pad, 40 C.F.R. §265.443(j); Count two, disposal of hazardous waste without a
permit, Or. Rev. Stat. § 466.005(4).; and Count three, failure to comply with closure
requirements, 40 C.F.R. § 265.112, § 265.445. Respondent filed its Answer on November 21,
1997, generally denying the material allegations of the Complaint. On June 11, 1998,
Complainant filed a Motion for Leave to File First Amended Complaint in order to clarify
allegations and statements in the original Complaint. Respondent had no objection in its response
filed June 22, and the undersigned granted Complainant's Motion in a June 29, 1998 Order
Granting Complainant's Motion to File First Amended Complaint.

On June 15, 1998, Complainant filed a Motion for Partial Accelerated Decision
contending that no genuine issues of material fact remain and Complainant is entitled to
judgment as a matter of law. With regard to Count I, Complainant first argues that Respondent
admits in it's Answer of paragraph 10 in the Complaint that its tram carts were observed off the
drip pad and that wood-treating chemicals from the tram carts were observed on the ground
around the tram carts. Second, a 1994 RCRA Facility Assessment notes that a small railcar
contaminated with treatment chemicals was being stored on the soil at the time of the Visual Site
Inspection. Third, photos taken during the EPA Tax Credit Inspection reveal tram carts being
stored off the drip pad. Fourth, Complainant presents an affidavit of James Billings, an inspector
who observed the tram carts off the drip pad and the wood-treating chemicals on the ground.
Fifth Complainant contends that Respondent has admitted that it is standard practice to move the
tram carts off the drip pad onto the soil north of the drip pad.

In its June 26 Response to EPA's Motion for Partial Accelerated Decision, Respondent
argues that factual issues preclude the granting of Complainant's Motion.(1) Respondent's affidavit
of Leo Godsey contradicts the information provided by EPA's inspection. The affidavit alleges a
disputed issue of fact in stating that EPA's Exhibit A photographs indicate a substance appearing
to be "either hydraulic or motor oil residue in stormwater from vehicles operated in Taylor's
storage yard, not wood treating chemicals" as EPA contends.

Further, Respondent asserts that the overall drip pad operations are at issue and this
requires further facility-specific information on the operation of Taylor Lumber. Respondent
supports this contention by language in the final rule of Subpart W indicating that "methods for
effectively preventing such migration of contaminants will vary depending on plant
configuration and other factors." See Final Rule at 55 Fed Reg 50,450, 50,464 (1990). The
regulation itself also indicates that the management of incidental and infrequent drippage in
storage yards are not applicable to this subpart, 40 C.F.R. § 265.440(c). Whether EPA's claims
of drippage are infrequent or incidental are unresolved issues of fact.

In addition, Respondent argues that the regulation at issue, 40 C.F.R. § 265.443(j)
requires that the tracking of hazardous waste be minimized, as opposed to eliminated. This
language requires an examination of Respondent's facility operations to determine the extent to
which the facility operates through its drip pad operations, to minimize the tracking of hazardous
waste.

II. Standard For Accelerated Decision

The Consolidated Rules of Practice, § 22.20(a) authorizes the Administrative Law Judge
to "render an accelerated decision in favor of the Complainant or Respondent as to all or any part
of the proceeding, without further hearing or upon such limited additional evidence, such as
affidavits, as he may require, if no genuine issue of material fact exists and a party is entitled to
judgment as a matter of law as to all or any part of the proceeding."

The burden of showing there exists no genuine issue of material fact is on the party
moving for summary judgment. Adickes V. Kress, 398 U.S. 144, 157 (1970). In considering such
a motion, the tribunal must construe the factual record and reasonable inferences therefrom in the
light most favorable to the non-moving party. Cone v. Longmont United Hospital Assoc.,
14 F.3d 526, 528 (l0th Cir., 1994). A simple denial of liability is inadequate to demonstrate that
an issue of fact does indeed exist in a matter. A party responding to a motion for accelerated
decision must produce some evidence which places the moving party's evidence in question and
raises a question of fact for an adjudicatory hearing. In the Matter of Rickford Inc., Docket No.
TSCA-V-C-052-92, 1994 TSCA LEXIS 90 (November 28, 1994).

The decision on a motion for summary judgment or accelerated decision must be based
on the pleadings, affidavits and other evidentiary materials submitted in support or opposition to
the motion. Calotex Corp. v. Catret, 477 U.S. 317, 324 (1986); 40 C.F.R. § 22.20(a); F.R.C.P.
56(c). Upon review of the evidence in a case, even if a judge believes that summary judgment is
technically proper, sound judicial policy and the exercise of judicial discretion permit a denial of
such a motion for the case to be developed fully at trial. See, Roberts v. Browning, 610 F.2d 528,
536 (8th Cir. 1979).

Respondent has raised issues of fact through its affidavits contradicting EPA's evidence
and its discussions of the language of the regulation at issue. A hearing is therefore necessary to
fully develop the record on the drip pad operations of Respondent's facility. Among other issues
to be developed at hearing are: a determination of whether the contaminants found on the
Respondent's premises at the time of the inspection were, in fact, wood-treating chemicals as
EPA claims; a determination of whether Respondent's efforts to "minimize" the tracking of
hazardous waste sufficiently satisfy the requirements of 40 C.F.R. § 265.443(j); and further
information on the frequency and incidence of drippage at the facility must be examined at the
hearing.